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Is the ICC losing legitimacy in Africa?

by Eric Mugaju. Eric has just completed MSc Social Policy at LSE. He writes regularly for The Observer (Uganda) on Ugandan politics, law and development issues in East Africa.

Sudanese President Omar al Bashir’s ICC case file is pictured on a desk.

Many African countries have been threatening to withdraw from the International Criminal Court (ICC) over accusations that the court is disproportionately targeting Africans. Recently, these threats have been realised by a growing number of African states. In the last month, the ICC has suffered three possible withdrawals: Burundi, South Africa and now the tiny West African state of Gambia has followed suit in issuing withdraw notice. Could this spell the beginning of the end for the ICC?

The court’s 1st case was referred in 2003 by Uganda’s President Yoweri Museveni concerning the Lord’s Resistance Army (LRA) and their activities in the north of the country. In 2005, the court issued arrest warrants for the notorious Joseph Kony (founder of the LRA) and his top commanders. A full decade later, Kony’s second in command Dominic Ongwen surrendered to American soldiers and was then handed to the court on 21st January 2015, despite the fact that he could arguably have been tried in Uganda’s courts. Kony still remains at large.

So, the 1st case has delivered little in terms of justice to the people of Northern Uganda and has even failed to capture its principle target. It has even been argued by some that the President’s referral of Kony was little more than a cynical move meant to curry favour with the court and protect Ugandan top generals from being investigated themselves for war crimes committed in Northern Uganda throughout its civil war.

Furthermore, Kony’s indictment angered Northern Ugandan elders who at the time were in the process of negotiating a peace treaty using traditional justice methods, which unsurprisingly collapsed upon Kony’s insistence that the ICC charges be dropped, or at the very least, that leading Ugandan Army Generals be indicted by the court as well.

The countries withdrawing have cited similar problems with the system, while also questioning why no cases have been brought against the perpetrators of war crimes in Iraq and Afghanistan. Amid this ripple of discontent, veteran African statesman Kofi Annan has intervened and sought to defend the court against accusations that it is anti-African by pointing out that Slobodan Milosevic, former Yugoslavian President, was tried at The Hague.

While Annan’s observations are right, Milosevic was tried in a special tribunal before the ICC was created. Koffi Annan is right in pointing out that the court has not done enough to protect witnesses, however, structural problems have beleaguered it since its inception.

In its short life, the ICC has been party to a number of controversies and irregularities. The USA is not a party to the Rome Statute in keeping with its consistent failures to ratify human rights conventions. However, it used its position as a member of the UN Security Council to push for the referral of Sudanese president Omar al-Bashir to the court.

Rwanda indignantly refused to sign the Rome Statute after witnessing the painfully slow progression of the UN-sponsored International Tribunal for Rwanda in Arusha, and opted for the Gacaca courts, based on traditional justice. Its scepticism to international solutions was perhaps well-founded: the Arusha tribunal subsequently closed, having only managed to try a handful of génocidaires, leaving the majority still unaccounted for.

Given the perception of incompetence and disproportionate targeting of Africans associated with the court, it is not surprising that Libya’s UN-backed government has refused to hand Abdullah Senussi and others to the court.

Likewise, the ICC has been made a mockery of in Kenya, where its short-sighted impunity clauses were exposed by the collapse of the case against President Kenyatta and his deputy William Ruto. The impunity clauses basically mean that even leaders still in office can be tried for crimes against humanity. While in principle this sounds like a good idea, one might ask why the ICC considers its accused any different to the sitting Prime Minister of the UK (who cannot be tried for any crime while in office by the UK). When one considers problems relating to witness protection and evidence collection (let alone stability in the country), the idea seems even more untenable. In fact, this particular issue was directly cited by South Africa in its withdrawal, noting the ICC’s inconsistency with its own constitution (Diplomatic Immunities and Privileges Act 2001).

Another issue is the complexity of legal systems in many African societies, where ‘Western’, ‘International’ and ‘Customary’ forms of justice coexist. The Rwandan tribunal exemplified tensions between state-backed justice and traditional forms of justice. Many of the accused who were tried served their sentences in foreign prisons, and are now unwilling to return to Rwanda in fear of the reception they will receive from their countrymen.

What’s more, reparations for victims remain problematic, due to incongruence with justice outcomes in different justice systems. In many African societies there is no difference between ‘criminal’ and ‘civil’ offences. For example, if a member of one family was to murder a member of their neighbour’s family then in most Western societies, the murderer will have committed a crime against the state that may carry a prison sentance. In most customary legal systems, there are no prisons. In such a system, the murderer’s family might be expected to publically apologise any pay reparations to the victim’s family. This public acknowledgement of wrongdoing is one thing that is credited for the ability of communities to reconcile after large-scale trauma is uncovered at truth-telling commissions, as seen in South African and Rwanda. In this respect, international law is physically and emotionally removed from the victims of war-crimes.

I have heard an anecdote about the trial of of Charles Taylor at The Hague which explains this perfectly. People were gathering to listen to his trail the radio eager to witness the bringing-to-justice of the man who had helped to orchestrate extreme suffering during the civil war. After 10 minutes, an old woman complained: I don’t understand the language. I don’t understand what’s happening. What kind of justice is this?

Courts like the ICC do not usually acknowledge this problem. While its true that traditional systems also have faults, there is a reason why South Africa and Rwanda both chose hybrid systems to tackle the widespread trauma experienced by their citizens during apartheid and the genocide, respectively.

The other issue to consider is whether Gambia, South Africa and Burundi are withdrawing because of genuine concerns over the ICCs practices, or whether the moves are well timed anti-imperial PR stunts. Kenya’s Kenyatta and Ruto successfully pulled this off during the presidential election leading up the trial that never was, frequently branding the court a neo-colonial interference in Kenyan affairs. Uganda’s Museveni, who referred the first case, has teamed up with former enemy Omar al-Bashir to criticize the court and brand its representatives “a bunch of useless people” causing EU representatives walking out of his inauguration following a heavily disputed election. The spectacle of the diplomats sulking out of the inaugural reception served as a minor victory to the President, who appeared to feel that the institution had no right to question Ugandan electoral practices.

Gambia’s own election is coming up soon. With the opposition leader now in jail, the move to withdraw from the court should be viewed with a hint of suspicion that the timing could be an attempt to boosting domestic support. Again, Gambian political hopefuls play up the anti-imperial stance, with Information Minister Sheriff Bojang branding the ICC the “International Caucasian Court, for the persecution and humiliation of people of colour, especially Africans”. However, out of all the withdrawing states, Gambia arguably has the most credibility in its rejection of the ICC given its track record of criticizing international organizations and withdrawal from the Commonwealth.

In South Africa, the ANCs declining popularity and on-going land distribution problems could arguably benefit from something to remind the electorate of its struggle for independence, calling into question the country’s motivation for withdrawal. .

Regardless of motivation the ICC is now facing serious problems. None of these countries notified the UN of their intention to leave the ICC, as is technically required, but also slightly irrelevant: 3 UN Security countries (Russia China and USA) are not party to the ICC anyway. With Namibia, Kenya and Uganda also threatening to withdraw soon, the end of the ICC in Africa may be within sight.

It is still too early to know whether other countries will withdraw, yet what is clear is that the court has lost its legitimacy on the continent. Even the African Union is urging members not to cooperate and is looking elsewhere for solutions: the conviction of Hissène Habré in an AU-backed court in Senegalese court speaks volumes.

PS21 is a non-national, non-governmental, non-ideological organisation. All views expressed are the author’s own.